Various countries are governed by treaty law and international conventions when it comes to transferring prisoners. The first step before proceeding with any international prison transfer request is to determine whether the two countries at issue are both parties to the same treaty/international convention.
The United States, for example, is party to two international conventions on the international transfer of prisoners:
- The Convention on the Transfer of Sentenced Persons: The Convention on the Transfer of Sentenced Persons has the primary goal of fostering the rehabilitation of prisoners by allowing convicted foreign nationals to apply to have the remainder of their sentence served in their native country. The Convention also helps avoid language barriers and the hardship of being far away from family members while being incarcerated in the United States, giving it a strong humanitarian purpose as well.
- The Inter-American Convention on Serving Criminal Sentences Abroad: The Inter-American Convention on Serving Criminal Sentences Abroad provides a means for prisoners in the Organization of American States (“OAS”) to serve the remainder of their sentences in their home countries.
Prisoners can only be transferred to and from countries with which the United States has a valid treaty. There is a complex set of guidelines that the United States uses in determining whether a transfer request should be denied or granted, which ultimately decides the entire case. The final decision to grant the foreign national prisoner’s transfer is discretionary and is based on statutory rules, treaty requirements, and federal guidelines.
Hiring an attorney who is experienced in dealing with international prison transfer cases can help you understand the transfer process, work to speed up the stages of the transfer, and give counsel to your family members regarding the process.
What is the Office of International Affairs?
The Office of International Affairs (“OIA”) is an office within the Department of Justice (“DOJ”) that is charged with the responsibilities of returning fugitives to face justice, transferring sentenced prisoners to serve their sentences in their home countries, and obtaining evidence for criminal investigations and prosecution throughout the world.
The OIA conducts five key duties: (1) extradition and removal of fugitives; (2) transferring sentenced prisoners; (3) international evidence gathering; (4) giving legal advice to Department prosecutors; and (5) treaty matters.
Critical for purposes here is the international transfer of sentenced prisoners where those prisoners are a national of a foreign country. The OIA regularly adjudicates claims from sentenced prisoners to serve the remainder of their prison sentences in their home country.
What is the International Prisoner Transfer Program and the DOJ’s International Prisoner Transfer Unit (“IPTU”)?
The International Prisoner Transfer Program began in 1977 after the U.S. federal government negotiated several treaties to allow prisoners who have been convicted and sentenced in the United States to be transferred to their home countries. Once the transfer is completed, the receiving country assumes the responsibility for making sure that the prisoner’s remaining sentence is carried out.
The purpose of the International Prisoner Transfer Program is to facilitate the rehabilitation of the transferred foreign national prisoners as well as to alleviate foreign and diplomatic issues that usually accompanying the imprisonment of another country’s nationals.
Regarding the administration of the program, Congress conferred the power to administer the prison transfer program pursuant to all international prison transfer treaties to the U.S. Attorney General. The U.S. Attorney General has in turn delegated this authority to the Criminal Division and to the OIA. The International Prisoner Transfer Unit (“IPTU”) is a section within the OIA that is responsible for overseeing the administration of the program.
Approving or Denying the Foreign National Prisoner’s Transfer Request
The Department’s offices and units consider many factors before making their final determination as to whether to grant or deny an international prison transfer request by a foreign national. As mentioned, the primary motivating factor that guides this consideration is the potential rehabilitation of the prisoner back into society as a productive member in their home country after serving the remainder of their sentence.
The International Prison Transfer Program is built on the assumption that rehabilitation is the best way for the prisoner to get back into society where that society assists the prisoner’s adjustment to life after imprisonment. In other words, a prisoner is more likely to be successfully rehabilitated into society where their environment after imprisonment is filled with family, friends, and the culture, language, or other contacts that are most familiar to the foreign national something that only the foreign national’s home country can provide.
In addition to satisfying the relevant treaty provisions and weighing the rehabilitation interests for the foreign national, other important considerations include humanitarian concerns and law enforcement interests. Each criterion is carefully considered and weighed.
Foreign National Prisoner in Federal Custody
Step 1: Preparing the Transfer Application Package with the BPO
The international prisoner transfer process begins with a request from either the prisoner or the prisoner’s country; however, oftentimes, it is the prisoner that indicates their interest to transfer back to their home country. The prisoner in federal prison must first contact his case manager at the Federal Bureau of Prisoners (“BPO”) facility where the prisoner is serving his sentence. The case manager will then prepare a transfer application package that expresses the prisoner’s interest in transferring. After the case is reviewed and forwarded to the BOP’s Central Office, it is thereafter sent to the IPTU.
Step 2: Case Evaluation at the IPTU
At the IPTU, an analyst will be assigned to research and evaluate the prisoner’s case. Some of the analyst’s duties involved at this stage include contacting the BOP, requesting information about the prisoner’s case, and preparing an application summary of the important facts in the case. At the end of the research and evaluation, the IPTU analyst will prepare a recommendation memorandum for transfer. The Director, Deputy Director, or Associate Director of the IPTU reviews the prisoner’s transfer application and makes the final transfer decision.
A prisoner is deemed suitable for transfer where such transfer is consistent with the goals of the prisoner transfer program and will not harm any U.S. and law enforcement interests. This is a case sensitive analysis and is dependent upon the facts and circumstances of each case. After the IPTU makes its decision, it notifies the prisoner’s home country of this decision.
If the Department denies the transfer, the prisoner is allowed to reapply in two years after denial or seek reconsideration of this two-year wait if any relevant transfer impediments have been removed. If the Department approves the transfer, the prisoner’s home country receives the IPTU’s approval package and must also review the transfer request and make a decision. The United States is not involved any further in the prisoner’s case unless and until the prisoner’s home country makes a decision on the transfer.
Step 3: Approval and Consent Verification Hearing
If the prisoner’s home country the receiving country approves the transfer request, the BOP and IPTU arrange for a consent verification hearing (“CVH”). The sole purpose of the CVH is to confirm and ensure that the prisoner voluntarily consents to the transfer and is aware of the consequences of the transfer. The prisoner is represented by his private counsel or the IPTU arranges for a federal public defender to handle the case. As soon as the prisoner manifests his consent to the transfer at the CVH or waives this consent hearing with the prisoner’s attorney the IPTU notifies the receiving country that the prisoner has consented. The IPTU also directs the receiving country to make the necessary travel arrangements with the BOP to receive the prisoner.
Step 4: Arranging for the Transfer
The BOP coordinates and arranges for the transfer of the prisoner. At this stage, the BOP works closely with foreign escorts and provides the foreign receiving government with information about the prisoner to be transferred. Once the BOP and the receiving country agree upon a date for transfer, the prisoner is sent to a departure location and is physically transferred.
Step 5: Foreign Country Assumes Custody of Prisoner
After the prisoner is transferred to the foreign receiving country, the receiving country now assumes custody and responsibility for the prisoner to administer the prisoner’s remaining sentence. The prisoner now serves the remainder of their sentence in accordance with the laws of the receiving country their home country. The United States as the sentencing country retains the right to modify or vacate the sentence, pardon the offense, and can sometimes continue enforcing the sentence.
Foreign National Prisoner in State Custody
A foreign national prisoner can still request a transfer to serve the remainder of their sentence in their home country where they are currently in state custody. In such cases, the prisoner must follow the procedures regarding the transfer application required by the relevant state that sentenced the prisoner.
The prisoner’s transfer application request must be approved at both the federal and the state level prior to a state prisoner obtaining a transfer to his home country. If the state that has the prisoner in custody denies the transfer request, the denial is not reviewable by the DOJ. If the state grants the transfer request, the prisoner’s application for transfer is forwarded to the DOJ, who must then also approve the transfer.
After the DOJ approves the transfer if it does a transfer approval package is sent to the foreign receiving government. The foreign receiving government must also approve the transfer. After this approval, the prisoner is given a CVH. After the prisoner manifests their consent, the foreign receiving government and the BOP make arrangements for the prisoner to be transferred to the foreign government the prisoner’s home country to serve out the remainder of their sentence.
The Need to Hire an Attorney to Handle Your Prisoner Transfer Case
An attorney can greatly assist the prisoner and the prisoner’s family with the entire international prison transfer process. This includes working to make the process move swiftly, assisting with the consent hearing, collaborating with federal agents and DOJ officials to finalize the transfer, and arranging for any foreign assistance. An attorney trained in the prisoner transfer process not only helps individuals successfully return to their home country but can also help the individual’s families cope with the stress of the federal/state transfer process and provide guidance on what to expect. Contact The Criminal Defense Firm today.
Dr. Nick Oberheiden is a national litigation and trial criminal defense attorney who practices exclusively in the area of federal law.